EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

In defining the subject-matter of the inspection, it is not necessary to indicate the precise legal classification of the anti-competitive conduct, since it may not be precisely known to the competition authority. It is clear from administrative practice and case-law that the subject matter of the legal classification of anti-competitive conduct may be regulated and clarified in various ways during the administrative procedure itself. In the event of a suspicion of the participation of bid rigging by Waste PLC, it would be a suspicion of so-called “bid rigging”. target cartel. The subject matter of the inspection should also not be too extensive. However, what to do if the inspection finds information that is not related to the subject matter of the inspection, but indicates other anti-competitive conduct. In our case, for example, the abuse of a dominant position by Waste PLC. The question therefore arises whether the seizure of documents outside the subject-matter of the proceedings is not a fishing expedition. For the legality of conducting an on-site inspection in the event of suspicion of bid rigging by Waste PLC, where evidence of anti-competitive conduct other than that which is in the subject of the authorisation to carry out the on-site inspection is found, it is appropriate to secure and separate it from the ongoing investigation. Only after the information seized has been evaluated as possible evidence to initiate a possible new administrative procedure so as to safeguard the rights of the defence. It is clear from the above that the consequence of incorrect or illegal definition of the subject matter of the on-the-spot inspection may lead to the illegality of carrying out the inspection. Illegality may also apply to information and evidence that has been seized at the inspection carried out. From the administrative practice of competition authorities, however, we also know other cases where the courts find illegality in connection with exceeding the subject of the right to inspect on the spot. It does not have to be the illegality of the entire inspection, but only the part of the inspection that exceeds the subject matter of the inspection authorization (Judgment of the CJEU, HeidelbergCement C-247/14 P). 3.2 Purpose of the inspection In the inspection decision, the competition authority should indicate the available information in its possession on the suspected infringement. The competition authority should clearly state its assumptions, which should be verified during the inspection. The reason should not be arbitrary action by a competition authority, but should be based on objectively proven facts (Judgment of the CJEU, Dow Chemical , C-499/11 P and other cases). In the case of our hypothetical inspection at Waste PLC, a justification should be given as to why the company’s conduct is found to be contrary to competition law. This means that there are factual circumstances of the existence of bid rigging in relation to some or more public contracts on the market for waste collection.

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